BOEM Transfers Certain Regulatory Authority Over Offshore Wind Development to BSEE
Highlights
- A final rule effective Jan. 31, 2023, transfers responsibility for the administration of regulations governing safety, environmental oversight and enforcement for offshore wind development and alternate uses of existing facilities on the Outer Continental Shelf (OCS) from the Bureau of Ocean Energy Management (BOEM) to the Bureau of Safety and Environmental Enforcement (BSEE).
- The move makes no substantive changes to current regulatory requirements and imposes no additional regulatory burdens.
- Though it frees up BOEM's limited resources to better facilitate offshore wind development, the move does not address outstanding questions regarding the sometimes overlapping federal and state environmental review processes and approvals, which may stymie offshore wind projects.
Existing safety and environmental oversight and enforcement regulations governing Outer Continental Shelf (OCS) renewable energy activities were moved from the purview of the Bureau of Ocean Energy Management (BOEM) to that of the Bureau of Safety and Environmental Enforcement (BSEE) effective Jan. 31, 2023.1 This reorganization codifies much of what was already occurring in practice in regard to offshore wind development and parallels the bureaus' oversight of oil and gas activities. This transfer includes a reassignment of authority from BOEM to BSEE to: oversee facility design, fabrication, installation and safety management systems; ensure the safety of operations, including inspection programs and incident reporting and investigations; enforce compliance with all applicable safety, environmental, and other laws and regulations through enforcement actions; and oversee decommissioning activities.
Because the rule makes no substantive changes to regulations and does not modify substantive interests or rights, it is exempt from notice and comment rulemaking periods.2 For example, the requirements for and standards of review regarding the Facility Design Report (FDR) and the Fabrication and Installation Report (FIR) required for offshore wind developments are unchanged. The FDR and FIR will continue to be evaluated for consistency with an approved plan and applicable engineering standards.
With this move, BOEM's limited resources can be better allocated to its continuing responsibilities, which include identifying new lease areas, conducting lease auctions, enforcing the requirements for payments and financial assurances, and overseeing the design, construction and approval process for offshore wind developments.
Though the transfer of responsibilities frees up BOEM resources to support offshore wind development, this effort does not address the inherent challenges facing developers – where often overlapping federal, state and local regulatory regimes apply to a project – nor streamline the complicated environmental review and approval process.3 In December 2022, BOEM completed its first auction in the Pacific region, leasing five areas in California. Winners of this auction face particularly complicated and overlapping federal environmental review and permitting schemes, including review under the National Environmental Policy Act (NEPA), as well as stringent state permitting and California Environmental Quality Act (CEQA) review for portions of their developments in state jurisdiction, such as transmission lines and onshore facilities. These issues must be addressed should BOEM, and the states, wish to succeed in meeting the federal government's goal of 30 gigawatts (GW) of offshore wind development by 2030 and California's goal of 25 GW by 2040.
Notes:
1 Reorganization of Title 30-Renewable Energy and Alternate Uses of Existing Facilities on the Outer Continental Shelf, 88 Fed. Reg. 6376 (Jan. 31, 2023) (amending 30 C.F.R. § 285 and 30 C.F.R. § 585-86).
2 Id. at 6378.
3 The U.S. Department of the Interior notes, however, that any future streamlining effort will reflect this reorganization in its regulatory structure. Id. at 6379.